Obamacare and the Constitution

Someone is finally raising a very valid point about the attempt at a Federal takeover of health care.

Is is Constitutional?

That is a complex question, because the Supreme Court has over the years seriously broadened the powers of the government beyond those contemplated by the Framers, and expressly stated in the Constitution itself.

So, although I do not believe that the Constitution permits it, there is the potential that the Supreme Court might find otherwise.

Rob Natelson, over at Electric City Weblog, writes a bit about the question today, stating:

"Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document. (The exact number depends on how you count.) None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories."

The catch, however is:

"To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power. "

Thanfully, there is a "but":


"But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now. And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go."

My view is that if it is not a power ennumerated in the Constitution, then it is governed by the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Sounds pretty clear, doesn't it.

Questions like these are what Supreme Court selection is all about. The left wants appointees who will ignore the Constitution and approve every harebrained idea they have, while the right wants appointees who will preserve the Constitution.

Roosevelt, when he was President, forced the Supreme Court to back off the concept of due process with regard to the taking of property, by threatening to "pack" the Court by expanding the number of justices above the traditional nine.

That caused a lot of very questionable legislation to be passed and approved by the Court

Will Obama and the Democrats do that again? Or will the present Court just let them have what they want? What will Justice Kennedy do?

Perhaps the bill can be defeated and then we won't have to worry.